Separation of powers

  • May 22, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Mickey Edwards, Vice President and Program Director, The Aspen Institute

    The Constitution provides little guidance for congressional behavior: members of the House of Representatives and the Senate make their own rules, establish their own norms, choose their own structures. They are free to make it up as they go along. But one should hope that the Constitution’s empowerments and constraints – Congress’s specific constitutional obligations and specific areas in which it is prohibited from acting -- will not be the only guides to appropriate congressional behavior.

    In writing about the Founders’ concerns about corruption, Fordham’s Zephyr Teachout has argued that one can discern clear underlying principles threaded throughout the Constitution, even if not specifically stated. I would contend that the same concept – discernible unstated principles – applies to much of the constitutional framework regarding Congress, specifically in regard to the Founders’ expectations regarding behavioral norms: deliberation, debate, compromise, and in its interaction with the executive branch, a strong defense of institutional prerogatives. Almost all of these suppositions have proved to have been overly optimistic. There have been few James Madisons in the 21st century versions of the legislative branch.

  • May 10, 2017
    Guest Post

    by Erwin Chemerinsky, ACS Board Member; Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    President Trump’s firing of FBI Director James Comey creates an urgent need for a special prosecutor, independent of the White House and the Justice Department, to investigate whether members of the Trump campaign team and administration violated federal law. Comey had been leading the investigation into Russian influence in the presidential election and whether crimes occurred. Comey’s termination, six years before the end of his term, raises the question of whether this was done to squelch this investigation and who will lead a thorough inquiry that will insure that the prosecution of any who violated federal laws.

    There is strong evidence that crimes were committed. Michael Flynn, and perhaps others, appear to have violated federal statutes requiring registration as an agent of a foreign government and disclosures of payments from foreign governments. Moreover, it seems clear that Attorney General Sessions violated federal laws that prohibit lying to Congress.

    Sen. Patrick Leahy, a Democratic member of the Judiciary Committee, asked Sessions in a questionnaire if he had “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day.” Sessions’s answer was "no." During the confirmation hearings before the Senate Judiciary Committee, Sen. Al Franken asked Sessions what he would do if he learned of evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of the 2016 campaign.  Sessions replied, “I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign, and I did not have communications with the Russians.”

  • May 5, 2017
    The Missing American Jury
    Suja A. Thomas

    by Suja A. Thomas, Professor of Law, University of Illinois

    Since Trump took office, several issues, including immigration, have highlighted the importance of checks and balances between the branches of the government and between the federal government and the states.

    My book The Missing American Jury argues that the jury was intended to serve as a similar check on the government, but its authority has shifted to other parts of the government, making the jury’s independent governmental role precarious.

    While statistics from the founding are rare, there’s no question that the jury decides far fewer cases now than in the past. Juries decide less than four percent of criminal cases and less one percent of civil cases filed in federal and state court. And in many states, grand juries do not decide whether serious cases should proceed against criminal defendants.

    So what has happened to the jury? Over 95 percent of criminal cases are plea bargained, with some set of these pleas actually later resulting in innocence findings. In civil cases, judges may dismiss cases on summary judgment. For example, in factually intensive employment discrimination cases (discussed in another recent book), judges often conclude that a reasonable jury could not find for the employee—dismissing claims in whole or in part at a rate of 70 percent or more in some districts. 

    These stark statistics do not even account for the cases that are decided outside of court—those determined through settlement, arbitration or administrative agencies. 

    Often inefficiency, cost, inaccuracy and incompetence are proffered for why the jury decides few cases—why we use procedures like plea bargaining, summary judgment and administrative determinations, instead of juries. My book freshly examines this issue of why the jury has fallen.

  • April 11, 2017
    Guest Post

    by Chris Edelson, Assistant Professor of Government, American University’s School of Public Affairs and Author of Power Without Constraint: The Post 9/11 Presidency and National Security

    Last week, without congressional approval, Donald Trump ordered missile strikes against Syria. The argument for the strikes is, at first blush, compelling. We all saw the nightmarish pictures of murdered Syrian children. Syrian dictator Bashar al-Assad cannot be allowed to launch chemical weapons attacks against Syrian civilians with impunity. But additional questions present themselves. Is there legal authority for Trump’s decision? If Congress fails to act, what message will it send to the Trump administration, and what could this mean for future military action both in Syria and elsewhere?

    It is clear there is no authority under U.S. law for the strike (nor under international law), and that if Congress continues to passively defer to Trump’s unilateral decision it will be sending Trump a dangerous message: that decisions about when, where and against whom to use military force are for the president alone to make. That is the view John Yoo notoriously endorsed when describing the scope of presidential authority after the 9/11 attacks, and it is a description of presidential power that is incompatible with constitutional democracy.

    The simplest and also the most persuasive reading of the Constitution is that it assigns Congress authority over the decision to go to war, unless the United States faces an emergency situation requiring the president to repel a sudden attack without time to seek congressional authorization.  As Charlie Savage noted last week, most scholars agree that this is what the framers had in mind when they created a new document for a national government that would for the first time contain an executive branch. As Louis Fisher and others have explained, the framers decisively broke with the then-existing British model by granting the national legislature this power. The president is not a king, and the Constitution assigned powers previously belonging to the British king either to Congress or to the president and Congress jointly.

  • April 10, 2017
    Guest Post

    *This piece originally appeared in the Baltimore Sun.

    by Douglas F. Gansler, Former Attorney General of Maryland

    As the Maryland legislative session comes to a close, it is important to take note of one of the most significant accomplishments that occurred — the expansion of the Maryland attorney general's ability to challenge perceived unconstitutional and un-American maneuvers taken by the Trump administration "Maryland attorney general Frosh awarded expanded power to sue Trump administration," Feb. 15). As state attorneys general continue to emerge as the vanguard in the fight against the Trump administration, the Maryland Defense Act provides the attorney general with the same rights currently enjoyed by 41 other states and should be applauded.

    Previously, the attorney general had to seek the permission of the governor before instituting any lawsuit on behalf of the people of Maryland. For example, when Attorney General Brian Frosh requested Gov. Larry Hogan's permission to support other states' lawsuits against President Donald Trump's unconstitutional Muslim ban, the governor never granted that permission.

    In fact, the governor, in an apparent power grab, called the Maryland Defense Act "outrageous," "potentially unconstitutional," and upsetting to the system of "checks and balances." It is none of those things. Indeed, the authority of the Maryland attorney general should be expanded further so that he or she can join colleagues from the vast number of other states where the state attorney general does not need to seek permission from the governor prior to bringing any suit. For example, should Mr. Frosh wish to sue oil and gas companies exposing their complicity in climate change, pharmaceutical companies for pumping opioids into the market, gun dealers for pumping assault weapons onto our streets or car manufacturers for manipulating emissions readouts, he should be able to do so.